Todd v. Daniels

Mr. Presiding Justice Holdom delivered the opinion of the court. While -reversal is asked for several errors assigned on the record, in the view we take of the case but one question calls for our decision, which being answered in the negative, all other questions raised by counsel cease to be important. Such question is: Does the evidence sustain the charge of negligence in the declaration? And in the solution of this question we are aided by the narrowing of the issues to the claim “that a wrong order was given.” The undisputed colloquy of the trial judge with plaintiff’s counsel so demonstrates. The court said: “Then the machinery of the apparatus was in good working condition. They do not claim it was not. All they claim is that a wrong order was given. The whole case turns on that. That is right, isn’t it?” To which counsel for plaintiff responded, “That is true.” Counsel for plaintiff confined his argument to this point. Such is the gravamen of the charge in the declaration; that the duty of defendants was to furnish plaintiff a reasonably safe place in which to work, and that the falling of the car was the result of a careless order of defendant’s foreman. The evidence conclusively proves that the crane car, with its machinery and tackle, was in every respect in good order and condition, and that the place on the car where plaintiff was working was in every respect a safe place normally for him to do his work. The admission above set out has the same force and effect as the testimony, and in this respect, therefore, our conclusion is not subject to challenge. The accident did not result from any defect in any appliance in use at that time, or by reason of the lack of safety of the car; but it was brought about by the meeting of an unexpected antagonistic force in the form of a strong-gust of wind. That the accident occurred as detailed by plaintiff in the affidavit which he made the day after its happening is not only sustained by the testimony of all the witnesses, but is not seriously disputed by any one. Therefore we are narrowed down to the one remaining point—was the order a wrong .order, and if it was so proven to be, was it given in an emergency when there was no time for deliberation or thought, so that negligence is not imputable, because if there had been time for deliberation a different order could have been given which would have averted the disaster which followed the so-called “wrong order.” There is reliable evidence supporting the theory that the order given to lower the girder was the right order to give, and its successful carrying out the only means of averting the threatened accident. The gust of wind was not anticipated by any one engaged at the work with plaintiff. The peril of all on the car was suddenly made imminent. There was no time for anything but instant action. Instinct and not deliberation was the only faculty the exercise of which might save the situation. All that could be done was done, and it may be if the cable had been sufficiently long to have reached a resting place with the girder, the wisdom of the method employed to save the car from falling over the embankment might have been demonstrated. As plaintiff swore the day after the accident, when the occurrence and all the circumstances attending it were vividly in his mind, the accident was caused by a sudden gust of wind, the accident was unavoidable, and every thing possible was done to prevent it. The order to lower the girder was an emergency order, necessarily given on the spur of the moment in an effort to avert an accident which was momentarily threatening the crane car and those working upon it. Even if the judgment thus exercised was not the most judicious, the lack of time in which to form a more correct judgment relieves the act from an imputation of negligence. C. B. & Q. R. R. v. Peterson, 32 Ill. App. 139; Dunham v. Dandelin, 143 Ill. 409; Union Traction v. Newmiller, 215 ib. 383. It is plain from any viewpoint of the facts in this record that no negligence charged is sustained by the proofs, and the judgment of the Circuit Court is reversed. Reversed.